Nyesha Marie Porter v State Of Oklahoma

RE-2006-1308

Filed: Dec. 8, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Nyesha Marie Porter appealed her conviction for obtaining merchandise by false pretenses. Conviction and sentence were affirmed in part and reversed in part. Judge A. Johnson dissented.

Decision

The order of the District Court of Tulsa County revoking Appellant's suspended sentence in Case No. CF-2001-6134 is REVERSED with instructions to VACATE the order revoking suspended sentence. The order of the District Court of Tulsa County revoking Appellant's suspended sentences in full in Case No. CF-2001-885 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there jurisdiction to revoke Appellant's expired sentences?
• Was Appellant denied her statutory and constitutional right to due process due to the State's failure to file an Application to Revoke her suspended sentence?
• Must the order revoking be vacated because the basis of the revocation was not properly alleged and the District Court lacked competent evidence to justify revocation?
• Must Ms. Porter's conviction in CF-2001-885 be reversed and remanded with instructions to dismiss because she was erroneously charged and convicted as an adult?

Findings

• The court erred in revoking Appellant's suspended sentence in Case No. CF-2001-6134 due to lack of jurisdiction as the sentence had expired.
• The order revoking Appellant's suspended sentence in Case No. CF-2001-6134 is REVERSED with instructions to VACATE the order revoking suspended sentence.
• The order revoking Appellant's suspended sentences in Case No. CF-2001-885 is AFFIRMED.
• The claims regarding due process and improper allegations in the revocation were not meritorious.
• Claims about the validity of underlying convictions due to juvenile status are not properly raised in this appeal and must be directed accordingly.

RE-2006-1308

Dec. 8, 2006

Nyesha Marie Porter

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, PRESIDING JUDGE: On November 29, 2001, Appellant, represented by counsel, entered a guilty plea to a charge of False Personation in Case No. CF-2001-6134 in the District Court of Tulsa County. Appellant was sentenced to three (3) years, all suspended. On June 24, 2002, the State filed an Application to Revoke Suspended Sentence in Case No. CF-2001-6134. On August 22, 2002, Appellant confessed the State’s Application to Revoke in Case No. CF-2001-6134. She simultaneously entered a guilty plea to three (3) counts of Obtaining Merchandise by False Pretenses, in Case No. CF-2001-885, all in the District Court of Tulsa County. Sentencing in both cases was continued to allow Appellant time to pay restitution as ordered in Case No. CF-2001-6134. At a hearing held November 25, 2002, the District Court of Tulsa County, the Honorable Thomas S. Gillert, District Judge, sentenced Appellant to four (4) years for each count in Case No. CF-2001-885, all suspended. The sentences were ordered to run concurrently with Appellant’s suspended sentence in Case No. CF-2001-6134, which was to remain intact. On February 3, 2003, the State filed an Application to Revoke in Case No. CF-2001-885, alleging Appellant failed to pay restitution. At a hearing on March 17, 2003, Appellant confessed the State’s application and sentencing was passed to allow Appellant time to pay restitution. Appellant’s sentencing was set for review 8 times over the next three (3) years before her suspended sentences in both cases were ultimately revoked in full on December 8, 2006. It is from the order revoking her suspended sentences that Appellant appeals.

Appellant raises the following propositions of error on appeal:
1. The District Court lacked jurisdiction to revoke Appellant’s expired sentences;
2. Appellant was denied her statutory and constitutional right to due process when the State failed to file an Application to Revoke Appellant’s suspended sentence;
3. The order revoking must be vacated because the basis of the revocation was not properly alleged and the District Court lacked competent evidence to justify revocation of Ms. Porter’s suspended sentences; and
4. Ms. Porter’s conviction in CF-2001-885 must be reversed and remanded with instructions to dismiss because she was erroneously charged and convicted as an adult.

After a thorough consideration of these propositions and the entire record before us on appeal, we AFFIRM in part and REVERSE in part, the District Court’s order revoking Appellant’s suspended sentences in full.

Appellant claims at Proposition 1 that the District Court was without jurisdiction to revoke her suspended sentences because the sentences had expired. Appellant’s suspended sentence in Case No. CF-2001-6134 was imposed November 29, 2001; her suspended sentences in Case No. CF-2001-885 were imposed November 25, 2002. The State agrees that at the time Appellant’s suspended sentence was revoked on December 8, 2006, there was no unresolved pending Application to Revoke with regard to Case No. CF-2001-6134. This Court has ruled on numerous occasions that a trial court is without jurisdiction to revoke a suspended sentence after expiration of its term. See, Avance v. Mills, 1972 OK CR 89, II 10, 495 P.2d 828, 830-831. Therefore the order revoking Appellant’s suspended sentence in Case No. CF-2001-6134 in the District Court of Tulsa County is REVERSED with instructions to VACATE the order revoking suspended sentence.

However, the Application to Revoke filed with respect to Case No. CF-2001-885 was filed February 3, 2003, prior to the expiration of Appellant’s suspended sentences assessed in that case. At the time of sentencing, on December 8, 2006, Appellant had confessed the State’s Application to Revoke, but had not yet been sentenced. Rather, in an attempt to allow Appellant the opportunity to avoid incarceration, the District Court passed Appellant’s case for sentencing over a period of three (3) years to allow her to pay restitution owed in these cases. Therefore, the February 3, 2003 Application to Revoke remained unresolved, and Appellant was subject to being sentenced pursuant to that pending application. The filing of an application to revoke a suspended sentence tolls the passage of time for purposes of rendering the revocation proceedings timely. This is true even if the revocation hearing is held after the expiration of the original sentence. Id., 1972 OK CR 89, IT 14; 495 P.2d at 831.

We find no merit in Appellant’s claims advanced at Propositions 2 and 3, alleging she was denied due process and her constitutional rights during her revocation proceeding, and that her sentences were revoked upon claims not alleged in the State’s application. The State’s revocation application was still pending in Case No. CF-2001-885 at the time Appellant was sentenced on December 8, 2006. Appellant’s sentencing was repeatedly postponed, with her consent, in an apparent attempt to ensure Appellant’s compliance with the terms and conditions of her probation, and to allow the District Court to evaluate how much of Appellant’s sentence to revoke, if any. At the December 8, 2006 hearing, Judge Gillert reminded Appellant that she had confessed the State’s revocation application; that she had been given over 3 years in which to abide by the terms and conditions of her probation, but that she had not; and that during that 3 year period she had failed to appear for various hearings and been charged with another felony offense. The District Court advised Appellant that based upon her confession of the application, her suspended sentence was revoked. The decision to revoke in full may have been based, in part, on Appellant’s dismal failure to take advantage of the District Court’s leniency, but her suspended sentences were revoked for failure to abide by the terms and conditions of her probation, which she confessed.

Appellant’s final claim presented at Proposition 4, that her underlying convictions in Case Nos. CF-2001-6134 and CF-2001-885 are void because she was a juvenile at the time she was charged, is not properly presented as part of Appellant’s revocation appeal. The scope of review for an appeal of a revocation of a suspended sentence is limited to the validity of the revocation order. Rule 1.4(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008). Any challenge Appellant might have regarding the validity of her conviction must be presented in a direct appeal of that conviction pursuant to the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008).

DECISION

The order of the District Court of Tulsa County revoking Appellant’s suspended sentence in Case No. CF-2001-6134 is REVERSED with instructions to VACATE the order revoking suspended sentence. The order of the District Court of Tulsa County revoking Appellant’s suspended sentences in full in Case No. CF-2001-885 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Avance v. Mills, 1972 OK CR 89, II 10, 495 P.2d 828, 830-831.
2. Rule 1.4(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2008).
3. Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 745 (2011) - False Personation
• Okla. Stat. tit. 21 § 1541.1 (2011) - Obtaining Merchandise by False Pretenses
• Okla. Stat. tit. 22 § 982a (2011) - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 1051 (2011) - Jurisdiction
• Okla. Stat. tit. 22 § 18 (2008) - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Avance v. Mills, 1972 OK CR 89, II 10, 495 P.2d 828, 830-831
• Avance v. Mills, 1972 OK CR 89, IT 14; 495 P.2d at 831